117 Va. 878 | Va. | 1915
delivered the opinion of the court.
The land in controversy in this action of ejectment is a part of a. tract of 45,000 acres granted by the Commonwealth to Austin Nickols. The title to the latter subsequently became vested in John Belden. The plaintiffs, Wood and others, claim through sundry mesne conveyances under a deed from John Belden to William Wade, dated October 27, 1830, for 25,000 acres. The defendant, Phillips, claims under a deed from John Belden to Jacob Helm, dated October 15, 1834. It is conceded that both of these last mentioned deeds conveyed lands lying within the Austin Nickols boundary. The plaintiffs and defendant, therefore, claim under a common source of title, and it is apparent that if the deed from Belden to Wade covers the land in dispute the plaintiff’s title, being prior in time, must prevail. The controversy is thus reduced to a question of the location of the land. Thére was, it is true, some evidence upon the question of adversary possession, but it was altogether insufficient to affect the result, and requires no further discussion.
After the evidence on both sides had been concluded, the plaintiffs demurred to the defendant’s ■ evidence, but the court overruled the demurrer and rendered a judgment for defendant upon the conditional verdict of the jury in his favor. This action of the court is the ground of the first assignment , of error.
The principles applicable to demurrers to the evidence have been frequently and fully discussed in the decisions of this court and are perfectly well settled. A demurrer to the evidence by a party having the burden of proof, although not usually available to such party, is nevertheless an open and safe proceeding for him if he has established a prima facie case by evidence not in conflict with any other evidence in the case. Bonos v. Ferries Co., 113 Va. 495, 496, 75 S. E. 126; Burks’ Pl. & Pr., sec. 258, p. 486. And this is true even in an action of ejectment where the burden upon the plaintiff is peculiarly onerous. See Fentress v. Pocahontas, 108 Va. 155, 157, 60 S. E. 633, in which, though the demurrer to the evidence was tendered by the defendant, the reasoning of the court leads necessarily to the conclusion that where plaintiffs and defendants in ejectment stand solely upon title papers connecting them with a common source of title, without any dispute as to the fact that the senior papers cover the land in controversy, the holder of the senior title, whether he be plaintiff or defendant, must prevail upon his demurrer to the evidence.
' 1 In the instant case, however, the location is in dispute, and upon the plaintiffs’ demurrer to the evidence we are of opinion that the law is with the defendant. In order to
We will not enter into any extended discussion of the two surveys and the evidence bearing thereon. A careful consideration convinces us that reasonable men, upon a comparison of the two surveys and the evidence relative thereto, might differ as to whether, under the location of the 25,000 acre boundary as determined by the surveyor, Lee, in Turpin v. Saunders, any part of the land here sued for was embraced therein. This being true, the plaintiffs’ demurrer to the evidence was properly overruled. N. & W. Ry. Co. v. Dean, 107 Va. 505, 507, 59 S. E. 389. The burden, of course, was upon the plaintiffs to establish the identity of
The second assignment of error is directed to the action of the court in admitting, over the objection of the plaintiffs, certain evidence offered by the defendant. While the admission of this evidence might have been regarded as prejudicial, and therefore as ground for reversal, if the case had gone to the jury, the plaintiffs, having withdrawn the case from the jury by their demurrer, cannot now, under our view of the remaining evidence in the case, avail themselves of the error, if such it was. The general rule is that the improper admission of evidence, even where
If the evidence complained of here be disregarded entirely, the law of the case upon the demurrer is still with the defendant.
There was no error in the "decision of the circuit court and its judgment is affirmed.
Affirmed.